What international law applies to the recent armed conflict in Gaza?
Why is accountability important?
What are the obligations of states generally to ensure respect for the laws of war?
When are violations of international humanitarian law considered war crimes?
What other mechanisms are available when states fail to investigate these violations?
What about the investigation authorized by the UN Human Rights Council?
Could the International Court of Justice play a role?
What about convening a meeting of all High Contracting Parties to the Geneva Conventions?
Can persons suspected of serious violations of the laws of war be prosecuted in other countries?
Introduction
On December 27, 2008, Israel began an extensive military operation in the Gaza Strip with the stated aim of suppressing rocket attacks into Israel by Hamas and other Palestinian armed groups. The fighting ended on January 18, 2009 after Israel and Hamas separately declared unilateral ceasefires. According to the United Nations and the Palestinian health ministry, the fighting killed more than 1,300 Palestinians, including combatants. Of these fatalities, about 40 percent were said to be children (412) and women (110), plus an undetermined number of male civilians not taking part in hostilities. More than 5,000 Palestinians were reported wounded, a large number of them civilians and many of them seriously. Damage to public and private property was extensive. During the same three-week period, Palestinian rockets and mortars reportedly killed three Israeli civilians and one soldier, wounded more than 80 other civilians, and damaged homes and other structures; nine Israeli soldiers were killed in the fighting in Gaza.
Civilians have paid the largest price in this conflict, and their suffering has been immense. Human Rights Watch is currently investigating a range of alleged serious violations of international humanitarian law (the laws of war) committed by Israel and Hamas and other Palestinian armed groups. These include: the indiscriminate use of weapons such as heavy artillery in densely populated areas; using civilians as human shields or otherwise placing them at unnecessary risk; firing on or otherwise preventing ambulances and emergency medical care from reaching persons in need; firing rockets deliberately or indiscriminately into residential areas; targeting persons seeking to communicate their civilian status with white flags; and targeting presumptively civilian structures such as government offices, mosques, and police stations that were not being used for military purposes.
All parties to an armed conflict-both states and non-state armed groups-are responsible for complying with the requirements of international humanitarian law. That is, each party must respect and ensure respect for the laws of war by its armed forces and other persons or groups acting on its orders or under its direction or control. This obligation does not depend on reciprocity-parties to a conflict must respect the requirements whether or not the opposing side abides by it. It also does not depend on the reason for which the respective parties go to war, whether by a state ("fighting terrorism") or an armed group ("ending occupation"). And all parties to an armed conflict must be held to the same standards, regardless of any disparity in the harm caused by alleged violations.
A party to an armed conflict is responsible for serious violations of the laws of war committed by its armed forces and persons or entities acting under its authority, direction or control. That responsibility, whether by a state or non-state actor, entails a requirement to make full reparations for the loss or injury caused; reparations can take the form of restitution (reestablishment of the prior situation), compensation (financial payment) or satisfaction (such as a formal apology or other action) to another state, entity or individuals. As discussed below, states also have an obligation to hold accountable individuals under their control who are responsible for serious violations of the laws of war.
What international law applies to the recent armed conflict in Gaza?
The armed conflict between Israel and Hamas and other Palestinian armed groups is governed by international treaty and the rules of customary international humanitarian law. Customary humanitarian law, based on established state practice, binds all parties to an armed conflict, whether states such as Israel or non-state armed groups such as Hamas and other Palestinian armed groups, and concerns the conduct of hostilities. Relevant treaty law includes Common Article 3 to the Geneva Conventions of 1949, which sets forth minimum standards for the treatment of persons within a party's control, and the law on occupation found in the Fourth Geneva Convention of 1949, which remains applicable in Gaza because of Israel's ongoing control of many aspects of life there despite its withdrawal of forces.
Why is accountability important?
Holding individuals accountable for serious violations of the laws of war is important because it may deter future violations, promote respect for the law, and provide avenues of redress for the victims. Armed forces that hold offending individuals accountable under these laws promote discipline and professionalism within their forces, maintain responsible command, and improve relations with the civilian population. States and non-state armed groups that fail to establish such accountability undermine their standing in conflict areas and globally, and increase the likelihood of international action being taken against them. Such accountability is also necessary for the victims of laws of war violations and their families who seek justice for their plight.
What are the obligations of states generally to ensure respect for the laws of war?
All states, whether or not a party to the conflict, have a responsibility under the Geneva Conventions of 1949 to exert their influence, to the degree possible, to stop violations of international humanitarian law. Such action can be taken unilaterally or as part of multilateral measures, such as collectively imposed sanctions against a state, an armed group, or certain individuals.
Who is primarily responsible for ensuring accountability of individuals who have committed laws-of-war violations?
Ensuring justice for serious violations is, in the first instance, the responsibility of the states whose nationals are implicated in the violations. States have an obligation to investigate serious violations that implicate members of their forces or other persons under their jurisdiction. The state must ensure that military or domestic courts or other institutions impartially investigate whether serious violations occurred, identifying and prosecuting the individuals responsible for those violations in accordance with international fair-trial standards, and imposing punishments on individuals found guilty that are commensurate with their deeds.
While non-state armed groups do not have the same legal obligation to prosecute violators of the laws of war within their ranks, they are nonetheless responsible for ensuring compliance with the laws of war and have a responsibility when they do conduct trials to do so in accordance with international fair trial standards.
When are violations of international humanitarian law considered war crimes?
Individuals who commit serious violations of international humanitarian law with criminal intent-that is, deliberately or recklessly-are responsible for war crimes. War crimes include a wide array of offenses, among them deliberate, indiscriminate, and disproportionate attacks harming civilians, hostage taking, using human shields, and imposing collective punishments. Individuals also may be held criminally liable for attempting to commit a war crime, as well as assisting in, facilitating, or aiding and abetting a war crime.
Responsibility also may fall on persons who plan or instigate the commission of a war crime. Commanders and civilian leaders may be prosecuted for war crimes as a matter of command responsibility when they knew or should have known about the commission of war crimes and took insufficient measures to prevent them or punish those responsible.
Have Israel and Hamas met their past obligations to hold accountable individuals responsible for serious violations of the laws of war?
All too often, states whose citizens are implicated in serious violations in the laws of war lack the will or capacity to investigate and prosecute these crimes. Human Rights Watch has reported on this failure in a number of contexts, for instance with respect to Ethiopian forces in Somalia, US forces in Iraq and Afghanistan, Congolese forces in the Democratic Republic of Congo, and Russian forces in Chechnya.
Human Rights Watch's research into investigations and prosecutions by the Israel Defense Forces (IDF) from 2000 to 2005 found that Israel's military investigative practices and procedures were not thorough, impartial, or timely. The IDF typically conducted "field investigations" or "operational investigations," which rely entirely on soldiers' own accounts to determine whether a full investigation is warranted, without speaking to victims or independent witnesses. Field investigations, while they may serve useful military purposes, are completely inadequate to determine whether there is evidence of serious violations of the laws of war. Reliance on field investigations has served as a pretext for claiming, wrongly, that Israel had undertaken a proper investigation.
Israel has on occasion established state commissions to investigate government policies and practices. While these commissions sometimes harshly criticized Israel's military or political leaders, they have not contributed to establishing individual accountability for violations of the laws of war. A recent example was the Commission of Inquiry into the Military Campaign in Lebanon in Summer 2006, known as the Winograd Commission after the retired judge appointed to head it. The 2006 war between Israel and Hezbollah resulted in 1,125 Lebanese deaths, nearly 4,400 wounded, and an estimated 1 million displaced, the vast majority civilians.
In the commission's January 2008 report, a chapter devoted to international law concluded that the commission did not have the capability to make detailed inquiries into specific cases but that "Israel will conduct a suitable inquiry in every case which seems substantiated on its face, that there were breaches of international (or Israeli) law." The report also recommended that Israel and the IDF conduct a credible and timely "inquiry into events that raise concerns of deviation from military law, Israeli law, of the laws of war in international law," and specified that such inquiries be conducted "under the supervision and with the cooperation of a branch which is external to the system which the complaint is directed against."
To Human Rights Watch's knowledge, such inquiries have not taken place. The commission's only specific recommendation in this category was an inquiry into Israel's use of cluster munitions. Two internal IDF inquiries into the use of cluster munitions in Lebanon, whose results were not made public, exonerated the army of any violations of the laws of war in connection with the firing of thousands of artillery shells, ground rockets, and aerial bombs that delivered between 2.6 and 4 million submunitions over wide areas of southern Lebanon, mostly in the last three days of the war.
No Palestinian authority, whether Hamas in Gaza or the Palestinian Authority in the West Bank, has conducted investigations of any sort into serious violations of the laws of war by its own forces or armed groups affiliated with Hamas, Fatah, or other organizations, such as indiscriminate rocket attacks against civilian-populated areas in Israel.
What other mechanisms are available when states fail to investigate these violations?
Historically, states that failed to conduct investigations into serious violations of the laws of war compounded the problem of impunity by invoking the principle of sovereignty when any other authority sought to examine the matter. However, significant and important advances over the past two decades in international criminal law have made the prospect of accountability more of a reality, even in the absence of willingness on the part of states to ensure such accountability.
The treaty creating the International Criminal Court (ICC), which was adopted in 1998 and went into effect in 2002, empowers the court to investigate and prosecute individuals alleged to be responsible for war crimes, crimes against humanity, and genocide when states are unwilling or are unable to do so. The ICC can undertake a criminal investigation and prosecution if the suspected perpetrators are citizens of a state that is party to the ICC treaty, if the alleged violations are committed in the territory of a state that is party to the ICC treaty, or if a state that is not a party to the treaty asks the ICC to become involved in violations committed on its territory. In addition, the ICC can assume jurisdiction if the UN Security Council refers a situation to the court, as it did in 2005 when it referred the situation of Darfur to the court even though Sudan had not ratified the ICC treaty. Security Council action, as in all cases, depends on a positive vote by nine of the 15 council members and no negative vote, or veto, by any of the five permanent members.
As discussed below, the UN Security Council, the UN Human Rights Council and the UN secretary-general could also set up international commissions of inquiry to investigate alleged laws-of-war violations and recommend whether criminal investigation and prosecution of certain persons would be appropriate.
Certain categories of grave crimes in violation of international law, such as war crimes and torture, are also subject to universal jurisdiction, meaning that any state may authorize a tribunal to try offenders. Certain treaties, such as the Geneva Conventions and the Convention Against Torture, require states parties to undertake a criminal investigation and, if warranted, prosecution of suspected offenders who are under that state's jurisdiction, even if temporarily-that is, even if the crime has been committed by a foreign national against another foreign national, in a foreign country. The concept of universal jurisdiction enables states to fulfill this responsibility. It also enables states to try those responsible for other crimes, such as genocide or crimes against humanity.
Can the UN Security Council investigate alleged laws of war violations committed during the conflict in Gaza?
Given the poor record of both Israel and Hamas with regard to conducting impartial and timely investigations into serious violations of the laws of war by their respective forces, Human Rights Watch has repeatedly called on the UN Security Council to establish a commission of inquiry to investigate alleged violations by all sides in connection with the recent fighting in Gaza. This would be similar to commissions of inquiry that the Security Council has authorized with respect to other conflicts, such as in Darfur or the former Yugoslavia. The Darfur commission led to the above-mentioned referral to the ICC; the Yugoslav one led to the establishment of the International Criminal Tribunal for the former Yugoslavia. Reports prepared by these commissions, made up of international experts, included fact-finding on abuses and recommendations to ensure accountability.
Under the UN Charter, the Security Council has the greatest stature and authority to establish an investigative mechanism. Given the past unwillingness of the Security Council to address matters related to accountability in Israel and the Occupied Palestinian Territories, though, it may be necessary to explore other avenues to justice. Human Rights Watch has also urged UN Secretary-General Ban Ki-moon to establish a commission of inquiry to look into the conduct of both Israel and Hamas since mid-2007, including rocket attacks by Hamas and other Palestinian armed groups against Israeli civilians and Israel's blockade of goods and people into and out of Gaza, as well as during the fighting between December 27 and January 18 and.
What about the investigation authorized by the UN Human Rights Council?
The UN Human Rights Council voted on January 12, 2009 to dispatch "an urgent independent international fact-finding mission" to Gaza. The members of the mission are to be appointed by the president of the Human Rights Council, Martin Uhomoibhi of Nigeria.
The mandate for this mission is explicitly limited to violations of international human rights and humanitarian law by Israel, and does not include violations by Hamas and other Palestinian armed groups. Regardless of the comparative degree of responsibility for violations committed by the parties in this conflict, an investigation that looks at the actions of only one party is insufficient and will be criticized, justifiably, as biased and incomplete.
A credible and impartial inquiry must be able and ready to investigate all alleged abuses by all parties to the conflict. The high-level commission of inquiry established by the Human Rights Council to investigate the 2006 war between Israel and Hezbollah in Lebanon was similarly limited to examining violations by Israel. The experts in their report acknowledged that their mandate "does not allow for a full examination of all aspects of the conflict, nor does it permit consideration of the conduct of all parties." But they added that "any independent, impartial and objective investigation into a particular conduct during the course of hostilities must of necessity be with reference to all the belligerents involved." The report commented briefly on allegations that Hezbollah used "human shields" - that is, an alleged violation committed in Lebanon-but not at all on Hezbollah rocket attacks against Israeli civilian areas.
Could the International Criminal Court, or any other existing international tribunal, investigate and prosecute individuals implicated in serious crimes committed in Gaza?
Israel is not a party to the treaty establishing the International Criminal Court (ICC). Since only states can become parties to the ICC statute, the Palestinian Authority would have to be accepted as a state by the court for it to ratify the treaty and join the court. On January 22, 2009, the Palestinian Authority's minister of justice delivered a "declaration of competence" to the ICC in order to confer on the court ad hoc jurisdiction over crimes that allegedly took place on Palestinian territory; this, too, would require ICC recognition of the Palestinian Authority as a state. Otherwise, a Security Council referral would be required to enable the ICC to investigate and prosecute crimes committed during the armed conflict in Gaza.
Other existing international or mixed international/national criminal tribunals-including those established to prosecute crimes committed in Cambodia, Lebanon, the former Yugoslavia, Rwanda, and Sierra Leone-have no jurisdiction over crimes committed in Gaza. Their mandates are limited to certain crimes in particular geographic areas by UN Security Council resolution or by agreement between the United Nations and the country where the crimes were committed. Were the Security Council to undertake prosecutions by a tribunal outside of the ICC, it would have to establish a new ad hoc court.
Could the International Court of Justice play a role?
The International Court of Justice (ICJ) has the authority only to adjudicate disputes between states, and only with the consent of the governments involved. It may also give advisory opinions on legal questions requested by the UN General Assembly or the Security Council, and on activity-related legal questions from authorized UN organs and agencies, such as the World Health Organization. The ICJ has no jurisdiction to investigate or prosecute individuals.
What about convening a meeting of all High Contracting Parties to the Geneva Conventions?
This is conceivably a step that could address state accountability, but involves no individual accountability mechanism. Article 1 to the Geneva Conventions obliges all states parties (and virtually all states have ratified the Geneva Conventions) "to respect and ensure respect for the present Convention in all circumstances." In December 2001, a Conference of High Contracting Parties convened and called on all parties in the conflict between Israel and the Palestinians to ensure respect for the Geneva Conventions, and for Israel as the occupying power to refrain from committing grave breaches of the Fourth Geneva Convention, but took no enforcement steps. A similar conference of parties to the Fourth Geneva Convention could be reconvened with respect to violations in Gaza.
Can persons suspected of serious violations of the laws of war be prosecuted in other countries?
National courts can and should play a role in combating impunity for grave violations of international human rights and humanitarian law. The "grave breaches" provisions of the Geneva Conventions as well as the Convention against Torture mandate the exercise of universal jurisdiction. "Universal jurisdiction" refers to the competence of a national court to try a person suspected of a serious international crime such as war crimes, crimes against humanity, torture, or genocide.
Many countries have laws that would permit them to exercise universal jurisdiction and prosecute such serious crimes. The practice has lagged behind the laws, out of concern about the potential politicization of the authority as well as issues of resources required to conduct such investigations and prosecutions. There has been a steady rise in the number of cases prosecuted under universal jurisdiction laws in the past decade, particularly in Western Europe. The successful prosecution in national courts-including in France, the United Kingdom, the Netherlands, Spain, Belgium, and Norway-of international crimes committed in countries as varied as Mauritania, Afghanistan, the Democratic Republic of Congo, Rwanda, and Bosnia and Herzegovina shows that universal jurisdiction is becoming a reality. Universal jurisdiction also is gradually becoming assimilated into the functioning of criminal law systems in some countries.
To date, there has not been any successful prosecution of grave crimes committed in Israel or the Occupied Palestinian Territories under universal jurisdiction laws. In Belgium, in 2001, individuals brought complaints against Ariel Sharon, then Israel's prime minister, and other Israeli military officers alleged to be responsible for the Sabra and Shatila massacres in Beirut in 1982. Others then brought complaints against Yasser Arafat, then the Palestinian leader, for his alleged responsibility for acts of terrorism. In 2003, Belgium's Supreme Court ruled the complaint against Sharon inadmissible because, as head of government, he was said to enjoy immunity from jurisdiction in a foreign court. Subsequently, Belgian lawmakers amended its universal jurisdiction law so that it applied only where the victim or the accused was a Belgian citizen or resident, with the result that none of these cases proceeded to the opening of a formal investigation and prosecution before Belgian courts.
In 2005, a British judge issued an arrest warrant against a retired Israeli military commander, Doron Almog, who was visiting the United Kingdom, but he learned of the warrant on his arrival and never disembarked from the plane before returning to Israel, thus avoiding arrest.
Isn't there a double standard when it comes to international justice, with prosecutions only of individuals from states with less political clout?
Many people have criticized the UN Security Council for focusing its international justice efforts on African and Arab parties, while others have complained that efforts by parties to initiate criminal investigations of Israeli officials are highly politicized. Perpetrators of serious crimes in violation of international law should be held to account irrespective of nationality. Nevertheless, the objective landscape of international justice has been uneven. States, often acting through the UN Security Council, have decided when to establish international criminal tribunals and what mandates to provide. Political considerations have been a factor, and the scope of the institutions they have created has not matched the extent of grave crimes committed. Despite this selectivity, these institutions have contributed to establishing accountability at least in respect to the conflicts that fall within their mandate. That is the right thing to do because a victim of a serious violation of the laws of war should not be told she will be denied her day in court simply because another victim's plight was ignored. That said, Human Rights Watch strives to extend accountability efforts for the worst crimes wherever they occur.
